Carson v. Robotkay

W.D. Washington

Carson v. Robotkay

District Court, W.D. Washington·Decided June 30, 2021·No. 3:18-cv-05858·Unknown

Opinion

The Honorable Marsha J. Pechman

WESTERN DISTRICT OF WASHINGTON ROBERT CARSON, Case No. 3:18-cv-05858-MJP Plaintiff, AGREED PRETRIAL ORDER v. UNITED STATES OF AMERICA,

Defendant. Jurisdiction in this matter is premised upon the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2679(b)(1). The United States has waived sovereign immunity for the negligent or wrongful acts or omissions of any federal employee acting within the scope of employment, under circumstances where the United States, if a private person, would be liable to the plaintiff in accordance with the law of the place where the act or omission occurred. 28 U.S.C. §§ 1346(b). The parties agree that Washington state law substantively governs the claim to be adjudicated at trial in this matter. // // Plaintiff will pursue the following claims for relief: Monetary damages for the property damages to his car; monetary damages for medical specials; and monetary damages for his general damages of past, present and future pain and suffering, disability, loss of enjoyment of life. The United States will pursue the following affirmative defenses/claims for relief:

1. Plaintiff’s injuries and damages were not proximately caused by the negligent or wrongful act of an employee of the United States. Specifically, Plaintiff’s current lumbar and cervical pain is caused by a pre-existing degenerative joint disease and ossification of posterior longitudinal ligament (“OPLL”), unrelated to the motor vehicle collision, but symptomatic at the time. 2. To the extent this Court finds that the current spinal pain is causally related to the collision, Plaintiff has failed to mitigate his damages with respect to the same. Specifically, Plaintiff has repeatedly declined both diagnostic and therapeutic treatment options targeted at relieving his cervical and lumbar pain. Such declinations are unreasonable and have more likely than not adversely affected his recovery. See Fox v. Evans, 127 Wash. App. 300, 306 (2005).

3. Plaintiff is not entitled to $2,220.01 for property damage to his 1993 Geo Metro because the only repair estimate disclosed sets forth repairs beyond those caused by the subject collision and, further, Plaintiff voluntarily salvaged the vehicle for parts in 2018. 4. Plaintiff’s total damages must be limited to no more than $164,964.44, the only damage computation previously disclosed during discovery. See FRCP 26(a)(1)(A)(iii), 26(e)(1)(A), and 37(c)(1). // // 1. Plaintiff was involved in a motor vehicle collision with a United States Postal Service (“USPS”) employee on January 15, 2017, at approximately 1:11PM. 2. The collision occurred at the intersection of E. Washington Street and N. Rhodefer Road in Sequim, Washington. 3. The USPS employee was executing a right-hand turn from a stop sign on N.

Rhodefer Road when he collided with Plaintiff. 4. Plaintiff was traveling east on E. Washington Street. 5. The USPS employee collided with Plaintiff’s rear passenger’s side door. 6. The USPS employee was traveling approximately 2-5 MPH. 7. Plaintiff was traveling approximately 30 MPH. 8. Both drivers declined medical treatment at the scene. 9. The United States admits that the employee failed to yield the right-of-way and thus caused the collision, but disputes the nature and extent of Plaintiff’s damages. The following issues of law must be determined by the Court:

1. Has Plaintiff proved by a preponderance of the evidence that he is entitled to the full repair estimate of $2,220.01 for his 1993 Geo Metro? 2. Has Plaintiff proved by a preponderance of the evidence that his claimed past medical expenses were reasonable, necessary, and related to the subject collision? 3. Has Plaintiff proved by a preponderance of the evidence that he requires future medical care and that any such care is reasonable, necessary, and related to the subject collision? // // 4. Has Plaintiff proved by a preponderance of the evidence that he experienced pain, disability, and suffering as a result of the collision and/or will with reasonable probability, continue to experience pain, disability, and suffering in the future? 5. Has the United States proved by a preponderance of the evidence that Plaintiff failed to mitigate his damages?

The following expert witnesses may be called by Plaintiff at trial: Donna Moore, M.D. – Will Testify Medical Consulting Associates, PLLC 9226 Bay Shore Drive NW, Suite 230 Silverdale, WA 98383 Tel. (360) 692-6202

Dr. Moore is a Physical Medicine and Rehabilitation physician who conducted an Independent Medical Examination on Plaintiff on October 22, 2018, at the request of Plaintiff’s attorney, Greg S. Memovich. She will testify regarding Plaintiff’s medical specials and Plaintiff’s treatment, injuries, pain, suffering, disabilities and possible future treatment, pain, suffering, and disabilities. The following expert witnesses may be called by the United States at trial: Joshua Shatsky, M.D. – Will Testify WestSound Orthopaedics - Silverdale 4409 NW Anderson Hill Road Silverdale, WA 98383 Tel. (360) 698-6630

Dr. Shatsky is an orthopedic surgeon employed by WestSound Orthopaedics, and is among Plaintiff’s treating physicians. Dr. Shatsky may be called by the United States to testify as to his multiple examinations, observations, interactions, and Plaintiff’s prognosis as of January 2018, including recommendations made regarding future care and treatment, which Plaintiff declined. He may also be asked to interpret the MRI of Plaintiff’s spine from May 2017 and testify regarding its significance from an orthopedic perspective. Wilson Chang, M.D. – Will Testify Swedish Pain Services 601 Broadway, Suite 530 Seattle, WA 98122 Tel. (206) 386-2013

Dr. Chang is a Physical Medicine and Rehabilitation Specialist employed by Swedish Pain Services, and was among Plaintiff’s treating physicians. Dr. Chang may be called by the United States to testify as to his multiple examinations, observations, interactions, and Plaintiff’s prognosis as of October 2021. Dr. Chang will discuss the various diagnostic and therapeutic treatment options recommended but rejected by Plaintiff during his treatment of him. Dr. Chang will discuss Plaintiff’s continued nonadherence to pain medications and belligerent behavior with his staff that ultimately lead to Plaintiff’s dismissal from his services. The following lay witnesses may be called by Plaintiff at trial: 1. Robert Carson c/o Greg Memovich, Counsel for Plaintiff Will testify regarding liability and damages. The following lay witnesses may be called by the United States at trial: 2. Jason Robotkay – Possible Witness Only c/o Erin K. Hoar, Assistant United States Attorney, Counsel for United States

Free access — add to your briefcase to read the full text and ask questions with AI